Legal Update: Medical Doctor Sues Hospital for Medical Negligence and Changes Law on Access to its Quality Assurance Data

By Arthur D. Leritz

February 25, 2011

What happens when a medical doctor, who received an IV transfusion at a hospital operating in Washington, claims that there was negligence when the procedure went awry resulting in permanent neurological damage to the left arm and that she can no longer practice her specialty of obstetrics and gynecology?

Is the injured doctor allowed to access the hospital’s confidential database of prior incidents involving other patients with similar incidents?

The January 31, 2011 Court of Appeals decision of Lowy v. Peacehealth (doing business as St. Joseph’s Hospital in Bellingham) looks at the issue and interprets a legislative statute RCW 70.40.200(3) that states that:

“Information and documents, including complaints and incident reports, created specifically for, and collected and maintained by a hospital’s quality improvement committee, are not subject to review, disclosure, discovery or introduction into evidence in any civil action.”

In Lowy vs. Peacehealth, Leasa Lowy, formerly a staff physician at St. Joseph’s Hospital in Bellingham, stayed at the hospital as a patient for six days in January 2007. Lowy alleged that, during her stay, she sustained permanent neurological injury to her left arm as a result of negligence when she had an intravenous infusion. According to her physician, Lowy will no longer be able to practice her specialties of obstetrics and gynecology due to the injury sustained at the hospital.1 Lowy filed a medical negligence lawsuit against the hospital and certain involved hospital employees.

In connection with her theory of corporate negligence, Lowy sought to obtain information relating to instances of “IV infusion complications and/or injuries at St. Joseph’s Hospital for the years 2000-2008.”2 Both parties agreed that going through the entire database of patient records, page by page, would be unduly burdensome. However, an easier way for the hospital to obtain the requested information would be to access information in a computerized database maintained by the hospital Quality Assurance Committee.

As a member of a quality and safety leadership team at the hospital, Lowy knew the database was capable of producing a list of patient IV injuries indexed by date and identification number. The court record shows an understanding that the hospital, through use of such a list, could readily identify the records of patients who experienced complications with IV infusions. After redactions to protect patient confidentiality, those records could then be produced to Lowy.

PeaceHealth believed the use of its quality assurance database to identify the records sought by Lowy was prohibited by RCW 70.41.200(3) and refused to provide the requested information. PeaceHealth filed a motion with the trial court asking it to deny Lowy’s access to the requested information. In an interesting twist, the trial court initially required PeaceHealth to designate an agent to review the quality assurance records but then reversed itself, ruling that the information requested by Lowy was protected by the statute and the hospital was not required to provide it.

The Court of Appeals, however, reversed the trial court’s decision and ruled that the statute’s intention did not mandate an absolute prohibition, but did require it to disclose limited information that identifies prior incidents involving IV injuries.3

The hospital will not be required to disclose who participated in the review process concerning IV injuries, which incidents the hospital found relevant or important, or how it sorted, grouped, or otherwise organized those incidents. The hospital will not disclose any analysis, discussions, or communications that occurred during the proceedings of the quality assurance committee. The response to the discovery request will reveal no more than if the hospital had produced the medical records through a burdensome page-by-page search. . . The hospital must deny review of its quality assurance records by outside persons, thereby preserving confidentiality of those records. But the statute may not serve as an artificial shield for information contained in ordinary medical records. We conclude that the hospital may review its quality assurance records for the limited purpose of identifying and producing these medical charts.4

The holding in Lowy makes it clear that the data compiled by a hospital’s quality assurance committee is now subject to internal review by a hospital staffer to determine if it will lead to records which themselves will be discoverable to third parties seeking the disclosure of records.

It is unclear if PeaceHealth will be appealing this decision, but it has 30 days to file a Petition for Review with the Washington State Supreme Court.

While this may change the way hospitals and their Quality Assurance Committees keep records, it also means that hospitals will have to change the way they respond to requests seeking information in incident reports kept by a Quality Assurance Committee. If asked, a hospital must now search its Quality Assurance incident reports to compile a list of patient files that will respond to the information requested by an injured party in a lawsuit.

The attorneys at Adler Giersch PS understand the implications of cases such as this for the patient and the provider. If you or your patients have questions about these issues or a traumatic injury, we are available to assist.

1 The hospital is owned and operated by PeaceHealth.2 Lowy vs. Peacehealth, Page 23 This interpretation is supported by the Supreme Court’s opinion interpreting a similar statute in Coburn vs. Seda, 101 Wn.2d 270, 276, 677 P.2d 173 (1984), and it is also supported by the legislative history of RCW 70.41.200.4 Lowy vs. Peacehealth, Page 8